Student's suit against N.C. university seeks to open private campus police records

NORTH CAROLINA — Nick Ochsner may have already walked across the stage, but he is still
fighting Elon University’s decision to withhold information about an on-campus
arrest.

Ochsner, reporting for
campus TV production Phoenix14News, was denied access to the facts and
circumstances surrounding the March 2010 arrest of another student.

According to his lawyer,
Ashley Perkinson, Ochsner was given “skeletal information” after submitting a
public records request to Elon’s Campus Safety and Police Department.

Ochsner requested the
complete incident report from campus police.

After several denials, the
campus police department released an incident report that included name, date,
location, charge and bond amount.

“They gave him the bare
minimum information, nothing really substantive. He was looking primarily for
the facts and circumstances of the arrest,” Perkinson said.

Elon is a private university
founded by what is now the United Church of Christ.

Perkinson requested more
information from campus police about the student’s arrest on Ochsner’s behalf.
The department denied the request.

Perkinson then filed a
public records request with the Attorney General’s office, which denied the
request stating it did not have any of the information about the arrest.

Elon University and North
Carolina Attorney General Roy Cooper are named as defendants in Ochsner’s lawsuit
filed on April 12.

The official complaint cites
a North Carolina statute that names the Attorney General the “legal custodian of all books, papers, documents, or
other records and property,” of campus police records filed with the Campus
Police Program within the Attorney General’s office.

In
his public records request filed with campus police, Ochsner argues that “the
Elon Campus Police Department is subject to the Public Records Law because [the
law] defines ‘public law enforcement agencies’ as all law enforcement agencies
commissioned by the state attorney general. Thus, the law covers police
departments at private colleges and universities as well as those at state
colleges and universities.”

A
spokeswoman for Cooper said the Attorney General’s office does not comment on
pending litigation.

However,
according to a letter attached to Ochsner’s complaint and written by Marvin
Clark, company police administrator for the Attorney General’s office, “records
of calls for service, arrest reports, and reports of investigation are the
responsibility of each company or campus police agency.”

In
a statement, Elon spokesman Dan Anderson said the university believes it is not
bound to release any information but chose to release the incident report
voluntarily.

“Elon University
understands that North Carolina law does not require independent universities
and their campus safety and police forces to release all of their detailed
criminal investigation records or notes,” the statement reads.

Frank LoMonte, executive
director of the Student Press Law Center, said that campus police departments
holding arrest power are answerable to public records law, and should be as a
matter of oversight and accountability.

“If you have an
arrest power given by the state, then the law is pretty clear that your actions
involving that power are public records. People are starting to realize that
private police forces are incredibly powerful and they could be totally
trustworthy, but they still need to be watched,” LoMonte said.

“The
power to arrest someone is one of the greatest powers we entrust to a limited
number of officials. The way you manage that power is paramount — no one should
be able to arrest a person without being held responsible for how or why that
was done.”

Perkinson
said Ochsner’s lawsuit is an attempt to clear hazy public records law and
clearly define what information private universities are required to release.

“They
have provided some information, but if you go with their argument and look at
the future, when any journalist requests any kind of information from a private
university campus police department their stance is that they don’t have to
provide anything except if they so please,” Perkinson said.

Anderson
said Elon was surprised to see this case move to litigation “despite the best
efforts by the university and its attorneys over the past year to respond to
[Ochsner’s] request for records.”

“The university has made every effort to balance the
interest of transparency while maintaining its mission as a private educational
institution that is mindful of its obligation to protect student interests,”
Anderson said.

Motions
to dismiss Ochsner’s case were filed by Elon University, Attorney General Ray
Cooper and the State of North Carolina on May 20. Perkinson said the hearing
for those motions has been set for mid-July.

“It
is an area of law that needs to be resolved,” Perkinson said. “Hopefully this
case stays alive.”

CLARIFICATION 6/2: Elon University was founded by what is now the United Church of Christ, though it is not formally affiliated with the church.